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FILE NAME Industrial Hygiene Foundation IHF DATE 1937 Nov DOC IHF060 DOCUMENT DESCRIPTION AHF Legal Bulletin dustrial AIR AIR HYGIENE FOUNDATION OF ann AMERICA Inc. Legal Series Bulletin No. I Supplement No. 2 A Survey of the Statutes and Court Decisions Respecting Occupational Disease from Air Pollution For the confidential information of members Not for reproduction wholly or in part PITTSBURGH PENNSYLVANIA NOVEMBER , 1937 CHAPTER II RESUME OF WORKMEN'S WORKMEN'S COMPENSATION LAWS AS THEY AFFECT OCCUPATIONAL DISEASE Section 1 States With No Compensation Acts Arkansas Mississippi Section 2 States Having Compensation Acts Which Exclude Compensation For Occupational Disease Either Expressly Or By Con- struction Of Court The following states as the result of recent actions occupationably their respective legislatures with respect to diseases can no longer be included under this section Delaware Indiana Michigan Pennsylvania Washington The complete list of states included in this section is now as follows Alabama Arizona Colorado Florida Georgia Idaho Iowa Kansas Louisiana Maine Maryland Montana Nevada New Hampshire New Mexico Oklahoma Oregon Carolina South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Wyoming For comment on each of the above states see Bulletin No. I Supplement No. 1 page 2 et seq Section 3 Compensation States Having Workmen's Acts Which Include Compensation For Occupational Disease Either Expressly Or By Construction Of Court states to This section is changed by adding the following those included thereunder in Bulletin No. I Supplement No. : 2 Delaware Indiana Michigan Pennsylvania Washington Nebraska Ohio Injury and personal injury include disability or death resulting from any of twelve enumerated occupational diseases Silicosis or other dust diseases are not included in the list of compensable occupational diseases All occupational diseases are now com- pensable under a new Workmen's Occupational Disease Act separate and distinct from the Workmen's Compensation Act The latter act applies only to accidental injuries and not to a disease unless it results from an injury by accident The Workmen's Compensation Act now provides compensation for disability or death resulting from any one of thirty- one enumerated occupational diseases including stone worker's or grinder's phthisis silicosis and pneumoconiosis By a new Occupational Disease Compensation Act effective January 1 1938 supplementing the existing Workmen's Compensation Act compensation is provided for twelve enumerated occupational diseases including silicosis or anthraco cosis and asbestosis Compensation is newly provided under the Workmen's Compensation Act for disability or death resulting from any of twenty enumerated occupational diseases Injury or death to any persons employed in any industry where intense dust prevails is included in the schedule Other Changes In addition to occupational diseases pe- culiar to the smelting or metal refining industries occupational diseases peculiar to the battery manufacturing industry are now compensable Silicosis has been added to the list of twenty occupational diseases already compensable under the Workmen's Compensation Act 3 The complete list of states to be found within this section including the foregoing states is as follows California Connecticut Delaware District of Columbia Illinois Indiana Kentucky Massachusetts Michigan Minnesota Missouri Nebraska New Jersey New York North Carolina North Dakota Ohio Pennsylvania Rhode Island Washington West Virginia Wisconsin For comments upon the states other than those newly added to this section or those in which changes have been made as noted above see Bulletin No. I Supplement No. 1 page 6 et seq CHAPTER III COMMON LAW RIGHTS AND LIABILITIES Recent Recent cases decided since the completion of Bulletin No. I SupplementSupplement No. 1 interpreting the common law as announced by the courts as distinguished from court construction of statutory law are included under the appropriate subhead- ings in the various chapters of this supplement CHAPTER XXII MARYLAND I. Workmen's Compensation Act 4 Court Construction In Beadle v Bethlehem Steel Co. 193 A. 240 Court death Appeals May 1937 compensation was denied where death resulted from heatstroke or prostration on the theory that injury by accident was involved The the time decedent at milmill in of his death was employed as a roller a steel the was work he was doing was hard and exacting and he re- was generated quired to work where a great deal of heat was generated The Court however pointed out that there was nothing extra- ordinary or unusual in his work on that day the that out- given off temperature out- side was unusual or evidence was about as usual and that the normal for that time of the year that the heat was occasioned by There an natural extraordinary condition of the employment not natural and ordinarily incident thereto II Other Statutes No change III Common Law Liability No change IV Miscellaneous Matters of Interest The Legislature adjourned on April 5 1937 Later it reconvened in special session from April 22 to May 6 1937 The survey of occupational diseases in Maryland survey Suplement com- mented upon in Bulletin No. I. , No. page has Supplement No. page entitled been completed A copy copy of of the published report entitled Bul etin Bulletin No. 236. 236. EvEavlaulautaiotnion of the Health Problemsoof fa procured of of State can be at a price 15 of 15 cents from thethe Super- Super- intendent of Documents Washington D. C. 38 CHAPTER XXIII MASSACHUSETTS I. Workmen's Compensation Act No change II Other Statutes . Labor and Industries A. Duties and Powers of the Department of Labor and Industries Chapter 249 of the Massachusetts Acts of 1937 amended Section 6 set out in full in Bulletin No. I part iv page 179 by striking out the following words beginning at line 12 applicable to either employers or employees or both The purpose of this amendment was to remove a difficulty caused by the words which were stricken which had been construed to limit the enforcement power of the Department of Labor and Industries over concerns doing business as partnerships The Department of Labor and Industries Division of Occupational Hygiene informed us that there were cases notoriously in the granite cutting industry where a considerable number of persons were occupied in a single establishment and all stated to be partners in the business They were therefore neither employers nor employees and the department found its hands tied The amendment remedied this objection Chapter 46 of the Resolves of 1937 requires the Department of Public Health and the Department of Labor and Industries acting as a joint board to investigate and study all aspects of occupational disease with a view to determining methods ways and means of reducing or controlling the hazards or the likelihood of contracting such diseases The joint board is to report to the general court the results of its investigation and study and its recommendations if any together with drafts of legislation necessary to carry the same into effect by filing the same with the Clerk of the House of Representatives by the first Wednesday of December 1937 III Common Law Liability No change IV Miscellaneous Matters of Interest The Legislature adjourned on May 29 1937 and has not since reconvened We are informed by the Department of Labor and Industries Division of Occupational Hygiene that no rules or regulations relating to dust hazards have been 39 ances authorized under subdivision a hereof may per- made to the injured employee or to person the or have sons who have furnished such service or who have comisoner advanced payment for same as the commissioner may may deem proper Wisconsin Section 102.42 provides The employer shall supply such medical surgical and hospital treatment medicines medical and surgical supplies crutches artificial members and appliances employer if or at the option of the employee the has not filed notice as hereinafter provided Christian ence treatment in lieu of medical treatment medicines medicines and medical supplies as may be reasonably cure and relieve from the effects required to injury to the not of exceed the period for which indemnity is payable and in case of his neglect or refusal seasonably seasonably to do so expense the employer shall be liable for the incurred by or on behalf of the emplreoayseoenaibnleproviding the same provis- From the foregoing it is at once manifest that few ions for treatment were drawn with occupational diseases in mind Diseases have been made compensable in several states constantly by court interpretations of the which refer to injury in the sense of traumatic injury In other instan- ces, disease was made compensable brief amendment and result it diffi- without adequately revamping the act As it is dif i- is cult to apply the treatment provisions to occupational dis- ease problems 116 OER ROT | ; CHAPTER LIV SUMMARY The ten summary for the chapter has been completely rewrit- the reader's convenience to incorporate into materials basic contained in the original chapter in the survey the numerous changes which have curred since the completion thereof The chapter oacs- fitting additional material into the original chapter it appeared in the basic survey as No comprehensive summary of the foregoing chapters will be undertaken and the effort to make such probably not assist summary would to what materially in determining the question as are the rights of the employer and employee in the various states Each state is a unit sovereign it handles the problems in its own although of course the way Uniformity is lacking The statutes of many states are similar courts of the various states follow such appeal to them precedents as consequently on any important question there is likely to be a divergence of opinion and often the among the courts state courts fall into two or more groups each group following a different theory with legal problem All of this respect to the same demonstrates the necessity of studying the statutes and court decisions of determine the status of the law each state to in that state and also the impossibility of accurately tabulating and laws with respect to occupational disease hazacrladsssifying the A few general observations however may be made Workmen's Compensation Acts have been six states The Longshoremen's and HarborpWasosrekderins fCoortmy-- in 1928 provide compensation with within the District of Columbia and arlessopewcitthto employments ability or death resulting from injury respect to dis- gable waters of the United occurring upon navi- is not provided by the state lSatwastesThwehseeretwsouch compensation tical as to acts being iden- coverage are commonly referred to as the Workmen's Compensation Law of the District of Columbia There are no Workmen's Compensation Laws in and Mississippi The first state to Arkansas pass a Workmen's Com- pensation Law was Wisconsin That law became May 3 1911. The last state effective was South Carolina whose act became effective September 1 1935. The State of Wisconsin 117 pioneered to a large extent and occupational disease has been compensable in that state by statutory enactment since 1919 The compensation acts are compulsory as to em- District private ployers in fifteen states and the of Columbia and states they are elective as to private employers in thirty A monopolistic state fund out of which compensation is paid is maintained in seven states wit Nevada North Dakota Ohio Oregon Washington West Virginia and Wyoming but the employer in two of those states Ohio and West Virginia may by proving financial responsibility carry his own risk with limited contribution to the state fund for the expense main- of administration In eleven states a state fund is tained but the employer is not required to avail of himself its privileges and may provide compensation otherwise In twenty states there is no provision for a state compensaticoonmpen- sation fund The administration of the acts is vested in a commissioner board or single commissioner in forty states and the District of Columbia In six states the acts are administered by the local courts The guiding principle in the early acts was the awarding of compensation for accidental injury meaning thereby traumatic injury In these years the importance of disability due to occupational disease was not generally recognized It however became increasingly apparent that injury might be suffered gradually and that the result of such grad- ual breaking down of the strength and resistance of the em- ployee was more serious in many instances than traumatic injury Courts therefore in some states with the wrestled and problem of construing injury so as to include disease bring disease within the compensation acts An outstanding example of such court effort appears in the Maryland decision rendered in 1925 in the case of Victory Sparkler & Specialty Co. v Francks The court held in that case that phosphorus years poisoning resulting from exposure over a period of came within the term accidental injury because the injury was suffered by chance that is not foreseen or anticipated resulted by the injured person and found that the condition from the negligence of the employer By this reasoning the court held that the particular disability was compensable although it held it not to be an occupational disease It was merely an accidental injury The result seems to be that in Maryland a diseased condition is compensable if caused by the negligence of the employer Leaving Maryland in a class by itself it is found that occupational disease is compensable to some extent in twenty- 118 vt * 7 one states and the District of Columbia They are California Connecticut Delaware Illinois Kentucky Indiana Massachusetts Michigan Minnesota Missouri Nebraska New Jersey New York North Carolina North Dakota Ohio Pennsylvania Rhode Island West Virginia Washington and Wisconsin In five of this group wit Delaware Minnesota Nebraska New Jersey and Rhode Island silicosis is not included among the compensable diseases In West Virginia silicosis is the only occupational disease made compensable In Idaho although compensation is provided for only accidental injury or death the term accidental has been given a liberal construction and might arguably include occupa- tional diseases In the next preceding chapter we have discussed at some length the matter of physical examination and functioning of medical boards in connection with occupational disease As there pointed out only eight states wit Kentucky Massachusetts Michigan New York North Carolina Ohio Pennsylvania and West Virginia have created what may fairly be called medical boards while New Jersey and Rhode Island provide for better than the ordinary type of medical examination but do not have provisions for medical boards The labor laws and factory inspection laws of the various states recognize the legal obligation to provide a safe place to work and ordinarily the matter of ventilation is featured Failure to comply with these laws results in liability of the employer and frequently authorizes the assessment of penalties The mining laws approach uniformity as to the quantity of fresh air required and as to the mechanical equipment required in connection with ventilation An effort has been made in this survey to cite the mining laws so that they can readily be found and to give the substance of them but in most instances it has been impossible to quote the laws verbatim Administrative rulings and safety rules have been adopted by numerous administrative bodies and in each state an effort has been made to quote the substance of such rules or to state what administrative body made the rulings and how they can be procured where they are too voluminous to quote or digest The common law liability for occupational disease is at once important and difficult to state concisely In many states there appears to have been no occasion for the courts to decide whether or not the right exists at common law to 119 recover for occupational disease due to the negligence of the employer In other states where the right existed it has been materially modified by the passage of Workmen's Compensation Acts In three states it has been held that such common law right to recover for occupational disease never did exist At best nothing more than a rough classification can be made of the states of the Union with respect to the common law right to recover for occupational disease We are making such rough classification but with the emphatic caution that the law of each state must be carefully studied and that lawyers might well differ as to where any particular state belongs in such classification First the states in which the courts have held that no such common law right of recovery exists They are Illinois Michigan and Ohio North Dakota also probably falls within this group not because the common law right never existed there but because if it ever existed it has been completely superseded by the Workmen's Compensation Act In that respect the law of North Dakota is rather unique In many instances the compensation acts provide that the remedies given thereunder are exclusive but they also provide that if the employer does not comply with the act the employee may pursue such remedy as he has at common law and the employer is in such action denied the common law defenses of assumed risk fellow servant rule and contributory negligence Under such circumstances it manifestly remains important to know whether any common law right of recovery exists in favor of the employee against such employer who has not complied with the act In North Dakota however the courts have held that the Workmen's Compensation Act is mandatory and exclusive that an employer failing to comply with the act does not thereby become liable to a common law action but is liable to an action for compensation as provided in the act to which action lack of negligence is not a defense and which action is the sole and exclusive remedy of the employee It may be said therefore that there is no common law right of action for occupational disease in North Dakota The employee has only such rights as are given by the Workmen's Compensation Act Occupational disease is compensable under that Act In two states we would say that the common law right of recovery is extremely doubtful They are Connecticut and Texas In Connecticut occupational diseases including silicosis are compensable in Texas occupational diseases are not , compensable 120 The common law right to recover for occupational disease caused by the negligence of the employer probably exists although there is some doubt in the following fifteen states Arkansas Delaware Georgia Indiana Iowa Maine Mary- land Massachusetts Oklahoma Oregon Pennsylvania Rhode Island Tennessee Virginia and Washington Disregarding Maryland commented upon in a prior paragraph of this chapter occupational diseases are not compensable in eight of the above states Arkansas Georgia Iowa Maine Oklahoma Oregon Tennessee and Virginia In Delaware Indiana Massachusetts Pennsylvania by act effective January 1 1938 Rhode Island and Washington occupational diseases are compensable four of these states Indiana Massachusetts Pennsylvania and Washington provide compensation for dust diseases That such right does exist seems well settled with respect to another group of thirteen states wit Alabama Califor- nia Kansas Kentucky Louisiana Minnesota Mississippi Missouri Nebraska New Hampshire New Jersey New York and West Virginia It should be noted that compensation is provided for occupational diseases in all of this group except five states wit Alabama Kansas Louisiana Mississippi and New Hampshire Of the remaining eight states providing compensation for occupational diseases five states California Kentucky Missouri New York and West Virginia provide compensation for silicosis or allied diseases In the remaining fourteen states and the District of Colum- bia wit Arizona Colorado Florida Idaho Montana Nevada New Mexico North Carolina South Carolina South Dakota Utah Vermont Wisconsin and Wyoming no court decisions which decide the question as to whether or not such common law right exists can be found It should again be noted that occupational diseases are compensable in only three of this group wit District of Columbia North Carolina and Wisconsin Silicosis is one of the compensable diseases in this group Another matter of particular interest and deserving of comment is the effort being made in numerous states to attack the problems created by and arising out of dust hazards in the industries within their own confines Since the completion of the basic survey in September 1936 new occupational disease legislation has been passed in seven states wit Delaware Indiana Michigan Nebraska Ohio Pennsylvania and Washington In Ohio and Nebraska the legislation supplemented existing occupational disease legis- 121 lation while in the remainder the legislation was the first of its kind passed in the state Silicosis is covered in all of the group except Delaware and Nebraska Occupational disease legislation was introduced but either failed to pass remained in committee or was vetoed in nine additional states wit Georgia Idaho Kansas Maine Minnesota Montana New Jersey Rhode Island and Tennessee In all of this group except Minnesota and New Jersey the acts if they had passed would have made occupational diseases compensable for the first time In Minnesota and New Jersey occupational diseases resulting from inhalation of dusts in the course of employment would have been added to the list of occupational diseases already compensable New and amending safety rule legislation was passed by the 1937 legislatures in seven states wit Arkansas Florida Georgia Illinois Indiana Montana and Pennsylvania Changes in safety codes affecting employers having dust hazards in their employments were made in Connecticut Minnesota New York and Vermont Changes are contemplated in the near future in Illinois Massachusetts Minnesota North Carolina Pennsylvania and Washington Resolutions were passed by the 1937 legislatures of Arkansas Massachusetts Montana and Oregon to investigate and report on occupational diseases In New Hampshire a resolution was passed to continue a study being made of occupational diseases In Texas the Division of Industrial Hygiene of the State Board of Health is now conducting a survey to find potential health hazards in mining quarrying construction and manufacturing industries The survey of granite quarries and stone cutting establishments being carried on in Rhode Island has been curtailed for the time being Reports on occupational disease hazards have recently been completed in California Maryland New Hampshire North Carolina and Vermont A report is now being prepared in Virginia and will be available in the near future with regard to dust hazards in certain industries in that state In conclusion we may say that the making of this survey has been a pleasant though difficult task and that the manifest effort on the part of legislatures commissions and courts to solve the rather recent disease problems arising out of industry should be a matter of great satisfaction to employers and employees alike 122 INDEX OF CASES CITED Case Page Ahrens v American Smelting & Refining Co. Neb 54 Allen v Shell Petroleum Corp. Kan . 33 Co. v Industrial Accident Commission Argonaut Mining 38 Beadle v Bethlehem Steel Co. Md Berkley Granite Corp. v Covington 25 Birmingham Electric Co. v Meacham Ala . 7 Bowing v Delaware Rayon Co. Del 19 Calland v Industrial Commission of Ohio Ohio 69 Carlson v Devoe & Reynolds N. Y. 61 Cazan v City of Detroit Mich vives Continental Baking Co. v Industrial Commission Utah 84 Crowley v Yonkers Herald Pub Co. N. Y .... cceeee 61 Evans v Chevrolet Motor Co. Mo. Mo. .. 50 Fox v City of Manchester N. H. .. 58 Gentry v Swann Chemical Co. Ala..... iccccccsscccseeceseeeees 6 Grant v Fisher Flouring Mills Co. Wash ccccccsccssccsesess 87 Grant Storage Battery Co. v DeLay Neb 55 Hoage v Royal Indemnity Co. D. C ... 22 Western Coal and Mining Co. Mo. secccccccsseess 22 Knaup Laudenklos Laudenklos . Department Department Roads &Irrigation Nebraska of Irrigation Mapes v Massey Co. N. Y. .... 61 65 McCreery v Libbey Glass Co. Ill oe. 29 Williams Ill McGuire v Co. cccccceccccssocosseee w- 323 Montreal Mining Co. v Industrial Commission Wis 93 Mutolo v Utica General Jobbing Foundry Inc. N. Y. Foundry Inc. Inc. ececccccceccsesssssssnceseesrssressecepeetees 61 62 66 Peck v Dugal G. Campbell Inc. N. Y. . 61 Pieczonka v Pullman Co. N. Y. Y. 64 Pryor National Lead Co. Mo. v oe 51 ceccecccscsecssseeseceescsecense Richter v E. I. duPont Nemours & Co. N. J. 59 Sandonato v Carborundum Co. N. ...... . 65 Schmitt v Industrial Commission Wis 92 Simmons 25 v Etowah Monument Co. Ga . 33 Smith v Cudahy Packing Co. Kan . Sparks v Long Bell Lumber Co. La ne 36 . Speziale v National Brass Mfg Co. N. _, 63 Texas Employers Ins Ass'n v Burnett Tex 83 Universal Granite Quarries Co. v Industrial Commission a Md 118 Victory Sparkler & Specialty Co. v Francks ..... Vogel v Manville Products Corp. III 29 Wurst v American Car & Foundry Co. Mo 51 . Cases cited also in basic survey and Supplement No. 1 123